Van Eck, NO, and Van Rensburg, NO, v Etna Stores

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Greenberg JA and Davis AJA
• Judgment Date: 04 June 1947
• Citation: 1947 (2) SA 984 (A)
• Court: Appellate Division

Davis, A.J.A.:

This is an appeal from a judgment of HATHORN, J.P., in the Natal Provincial Division granting, at the instance of the present respondents, an order on the second appellant to restore certain 74 bags of rice, which had been seized and removed under his orders, to the premises whence they were taken and to restack the same; both the appellants were ordered to pay the costs. There was also an order to deliver the key of the premises, but this was admitted to have been made under a misapprehension and to be of no importance.

A large number of points were taken in argument before us, but in my view the matter can be decided upon one which was not taken in the Court a quo, nor initially before us, but which was raised by this Court. Counsel were invited to look for further authority upon this point and to submit further argument; they have now done so. I need only set out the facts in so far as they bear upon this point.

The respondents are wholesale and retail merchants carrying on business in Durban, dealing inter alia in rice. The first appellant is the Director of Food Supplies and Distribution; the second appellant is the officer in charge of Economics and Markets and Assistant Director of Food Supplies and Distribution, stationed in Durban. (That during part of the relevant periods the titles of the offices which they held was different is immaterial: the offices continued in all but name to be the same.) On 8th May 130 bags of rice, the property of the respondents, were verbally 'frozen' in terms of Reg. 5 (1) of the Regulations for the Control of Food and Farming Requisites, War Measure 5 of 1944 - that is to say, they were required 'to hold that quantity available until such time as directions as to the disposal thereof have been given by the Director'.

Davis AJA

Of these 130 bags 30 were at the shop of the respondents and 100 were stored at the warehouse of one Singh; later the remaining 30 bags were also placed in Singh's warehouse. On the 10th May the second appellant informed the respondents, under sub-sec. (4) of Reg. 5, that the 130 bags were to be delivered at his store. On 29th May one Griffiths, who is also an Assistant Director of Food Supplies and Distribution and who was acting for the first appellant, again directed the respondents to deliver the rice, though to a different address. On 4th June they were again told to deliver the rice to the second appellant's store. On 10th June, 1946, the respondents, whose attorneys had been raising all kinds of queries, many of them of a quibbling nature, were 'finally warned' both from Durban and Pretoria that the rice must be delivered within seven days, otherwise they would be prosecuted, and a similar letter was again written to them from Durban on the next day. Another 'final warning' to deliver the rice was sent from Durban on the 18th July. On 23rd August one Buckle, who is an officer on the staff of the first respondent and, like the second appellant, also an Assistant Director of Food Supplies and Distribution, but who is apparently subordinate to him, informed one Hargovan, a partner in the respondent firm, that the rice 'would be collected early on Monday, 26th August'. On 24th August a telegram was sent from Griffiths to the second appellant, after Griffiths had received information from the second appellant to the effect that Hargovan 'had not complied with the delivery orders issued against him,' which read: 'Seize rice Etna Stores immediately and institute legal proceedings.' Griffiths in his affidavit stated:

'On the 29th August, 1946, after I had received advice from the second respondent to the effect that applicant had refused to let him take the rice, I sent a further wire to second respondent instructing him to force an entrance to the stores where the rice was kept with the assistance of the police. A copy of the said telegram is annexed hereto marked 'Z 1'. On the 31st August, 1946, I was advised by second respondent that 74 bags of rice had been taken over from applicant with police assistance.'

(The 'second respondent' is now the second appellant.) The telegram from the second appellant, to which this was an answer, was not produced by Griffiths, but the reply (Annexure Z1) was as follows: 'Your A.11 rice Etna Stores refers. Ask police to force entrance, if necessary obtain order of Court. Further instructions to follow. Advise result, urgent.' Neither the telegram advising the result nor the 'further instructions' were put before the

Davis AJA

Court. The telegram of 31st August refers to the fact that on the previous day Buckle, accompanied by a member of the South African Police and a gang of natives, went to the respondents' place of business and informed Hargovan that he had come to take delivery of the 130 bags of rice. They then went to Singh's warehouse, and on Hargovan refusing to open the door, the natives, on Buckle's instructions, broke open the door and carried away all the rice, consisting of 74 bags, and drove it to the store of the second appellant. When Hargovan enquired about payment, Buckle advised him to render an account and informed him that it would be sent to the head office in Pretoria for payment. There is some dispute as to what authority Buckle exhibited to Hargovan, but Buckle says in his affidavit that

'the rice was seized by me in the exercise of the powers mentioned in my Letter of Appointment as affording evidence of the failure of the said Hargovan to deliver the same in accordance with directions given to him by the Controller of Food and the Director of Food Supplies and Distribution and in contravention of the War Measure'.

The Regulation relied on as giving him authority to do so is Reg. 5 (1), which reads as follows:

'The Director shall have power -

(1) To...